I'll be sitting in this chair today because our erstwhile chair, Hedy Fry, is travelling, so it falls to me to take on the responsibility for this meeting and, I think, our next meeting. I will have to depart just before we finish off today.

We first have witnesses for 10 minutes each.

We have Murray Sinclair, who is a senator. From the Metro Vancouver Aboriginal Executive Council, we have Kevin Barlow, the chief executive officer.

You will each have 10 minutes to speak. I'll try to give you some kind of heads-up warning and then we'll get into question rounds.

This is a difficult time for us to be meeting, of course, after the attacks in Las Vegas, Edmonton, and Marseilles over the weekend, but we shall continue to plunge forward.

I just don't intend to speak for 10 minutes. I didn't come with a prepared set of notes. I came with a few talking points that I want to utilize, particularly in the context of what it is that you're undertaking.

First of all, to introduce myself, you all know me as Honourable Murray Sinclair from Manitoba, a senator from that province along with others, but my real name is Mizana Gheezhik, my traditional name. I am of the fish clan, namegos, which is the rainbow trout. We are the water clan people. Water clan people are the ones who are recognized as having the responsibility to be the dispute solvers, the traditional dispute resolution people. As I always remind people within our lodge, we are also the ones who are considered the philosophers and the dreamers. My name, Mizana Gheezhik, means “the one who speaks of pictures in the sky”, so it's about the responsibility that I've been given as well.

On the face of it, you have a very small-worded motion to consider. There's not a lot of space taken up on the page with the responsibility that you've been given. However, this is a huge undertaking because it affects virtually every person in this country, so I don't want to begin to try to measure that out for you. I'd like to just talk about a few phrases that I was invited to speak about, I think, because of my experience and the work that I've done.

As you know, I was appointed to the Senate in April 2016, and I am the first to acknowledge that I wasn't appointed to the Senate on the basis of my good looks. I am there because I'm an indigenous person. I was a judge for 30 years in the courts of our country, and during the course of my judicial career, I undertook three major studies. One was a study into medical error issues, but two directly impacted the issue of systemic discrimination and racism in our country: the aboriginal justice inquiry of Manitoba, which looked at the impact of the justice system on indigenous people in the province of Manitoba; and the Truth and Reconciliation Commission of Canada, which looked into the history of Indian residential schools, the history of colonization, and the impact of government action on indigenous people in this country and on non-indigenous people, as well. So, I think I have a bit that I can say and perhaps add to the conversation on the issue of systemic racism, but I am not very experienced in terms of dealing with the issue of Islamophobia. In terms of the motion that you have to consider, I'm quite willing to answer any questions about that and any other issue that you wish to talk to me about.

Let me focus my remarks, if I can, on the issue of systemic racism and systemic discrimination, because that's the area in which I have some experience, and I've written about it extensively.

People have a hard time understanding what systemic discrimination is and what systemic racism is. This is because it's not the kind of racism that comes necessarily from the behaviour, words, and actions of individuals, other than the fact that they are guided by the system in which they are functioning. The phrase that I always like to use is that systemic racism is the racism that's left over after you get rid of the racists. Once you get rid of the racists within the justice system, for example, you will still have racism perpetrated by the justice system. This is because the justice system follows certain rules, procedures, guidelines, precedents, and laws that are inherently discriminatory and racist because those laws, policies, procedures, processes, and beliefs—including beliefs that direct individuals on how and when to exercise their discretion—come from a history of the common law, which comes from a different culture, a different way of thinking. That would necessarily have a differential impact upon people who come from a different culture, a culture that is not the culture of the society that created that system to begin with.

For example, the Winnipeg police department used to have a rule that to be a cop in the city of Winnipeg you had to be a minimum of five feet, 10 inches tall. Anybody who was not five feet, 10 inches tall was not allowed to be a cop and they were filtered out right at the beginning. It was not discriminatory because it didn't say that only men could apply. It didn't say that short Filipino men couldn't apply. It didn't say that people who couldn't carry a human body couldn't apply. The intention behind the rule was that they wanted big, tough, scary-looking guys who would be able to handle themselves in the case of confrontation with people on the street. They figured five feet, 10 inches was the starting point. Most police officers in the city of Winnipeg were well over six feet tall.

The utilization of that as a standard for recruitment and acceptance into the police force obviously discriminated against most women. Not all women are under five feet 10 inches, I acknowledge, but most women are. People of different nationalities might not qualify because their nationality might inherently prevent them from reaching that height. I reference Filipino people, for example. They might not be able to qualify just because they come from a background in which the height of their family members and their community is not necessarily that tall.

The utilization of that rule also had no logical connection to the purpose of policing. That's the other reason that having that particular rule made no sense. Eliminating that allowed them to increase the number of women on the force and increase the number of people from different ethnic, cultural, and racial backgrounds. That assisted the police to police better. That's the whole question. If you have a discriminatory rule or if you have a rule that is having a differential impact on certain populations within society, and that impact is a negative impact, you have to question whether you need the rule. It doesn't mean you get rid of it automatically. If the rule is not causally connected to a benefit that you need and can only get in that way, then you need to get rid of the rule. You need to recognize that the negative impact is not benefiting you.

There are many such rules within the justice system. The justice system follows many such practices. Sentencing, for example, and bail reviews take into account certain factors that are negatively reviewed when it comes to indigenous people. For example, if you're sentencing somebody, the fact that they have consistent employment with the same person over a period of time is a factor you take into account. Do they have a regular residence in the community or do they have a homeless experience? Are they people who have mental health issues? These are all factors you take into account. When those factors are more prominent in a certain community of people, such as indigenous communities, then they will have a differential impact.

As I said, systemic discrimination and systemic racism is that racism left over after you get rid of the racists. That's when you need to look at what you're doing.

My agency represents an urban population in metro Vancouver, which is estimated to be about 70,000 indigenous people. We believe and most people believe that indigenous people have experienced systemic and government-sanctioned racism for hundreds of years. The residential school system wasn't really about educating. It was about Christianity conversion and taking the Indian out of the Indian.

When we're speaking to these historical influences, many people wrongly think we're talking about first contact when, in fact, we're talking about more current realities. I'm coming up to 56 years old in December, and it has been within my lifetime that I've experienced certain things. For example, the right for first nations to vote came in only about two years before I was born. The Davis Inlet Innu, for example, were relocated during my lifetime. These forced relocations are examples of how government-sanctioned racism occurred. So we're not really talking about hundreds and hundreds of years ago. We're talking about now, even though things started back then.

Recently we've been hearing a lot about historical name changes. For example, in Halifax they want to take down the Cornwallis statue, and there has been talk about changing some schools that have Sir John A. Macdonald's name on them. For those who don't know, Cornwallis was not a good person. He issued bounties on the heads of Mi'kmaq people. When we talk about trying to change these names, we need to ask what purpose doing that serves.

In my opinion, two things need to happen when we're looking at that. The first is a locally driven response. An example is that in Vancouver, there's an aboriginal focus school ironically named after Sir John A. Macdonald. The local community wants to change that to an indigenous name, and there's no major opposition to that. If a local community wants to make that change, and there's no major discord, then I think that's one thing we need to look at.

The second, though, I think is an opportunity for us to educate about those impacts. For example, rather than taking down Cornwallis' statue, why don't we have a plaque there that educates about that era and the impacts and the views that were held, and that says we don't agree with those things anymore? I think that would serve a better purpose than just trying to erase history.

I think a lot of Canadians think that we somehow were defeated in war as indigenous people, yet if you know your history, you know that Canada was formed largely because of treaties. You guys wanted to put a railway across the country to stop the Americans from moving up, and so you formed treaties. I think sometimes people think we were beat or defeated in war, and we should just take our lumps of coal, but I don't think that's the answer. We need to teach history in a proper context.

I think there's extreme polarization going on right now, and it's something I haven't seen in a long time. When I grew up in New Brunswick, there were segregated schools. It seemed like the English and the French couldn't get along, so at the school I went to there was an invisible line. French were on one side and the English were on the other. Because my community spoke English, we got lumped in with the English. Honestly, there were days when it seemed as though we were like rabbits being chased around by hound dogs, because people were bullying us. My reserve currently has only about 200 registered band members, but when I was growing up it was quite a bit smaller. Going to school there might have been four or five of us, and so we would be chased around.

I think that kind of polarization, with everybody in their own corners and not really wanting to get along, I'm seeing again today. I don't think it's so much about the Trump effect. I think it's more that there are enough people who think that way to elect someone like that. Those reality shows that have been out there have had that impact of slowly eroding away a certain morale or public standard. Social media, which I like to call anti-social media, also puts people in corners. There's a tendency that if you are friends with certain people who share your values, then you tend to see only those kinds of opinions, and so people are becoming more segregated in that way.

Fake news pops up every now and then, including on social media. One of them is about how new immigrants coming to Canada are paid these Treasury Board rates that are common for public servants or people who are travelling on government business, thinking they're making way more than people who grew up here and are on old age security or disability, that type of thing. When that polarization occurs, then I think those kinds of things have more opportunity to take hold. I think the Canadian government, regardless of who is governing, needs to play that leadership role and really make explicit efforts to educate people and bridge those divides.

An example in the United States is the trans people who were told not to use certain washrooms. Here in Canada I see signs going up saying “All genders welcome”. That's the Canadian way, where we are more embracing of differences. Even though racism does exist, we are generally not the same as our neighbours down south. We see these neo-Nazi or fascist rallies going on, and yes, people have a right to assemble and to voice their opinions. We do have laws that protect people against hatred, and we're seeing the counter. In Vancouver there was a rally, and there were literally thousands of people who spoke up to say they didn't accept this kind of hatred. We had a few hundred people who showed up to express their views, and we had thousands of people who opposed that.

I think Vancouver is a shining example of leadership at the civic level, where they have endorsed the principle and name themselves the city of reconciliation. They have gone out of their way to show that indigenous people within that area have a place. This racism discussion also needs to include a discussion about perceived racism. Indigenous people are overrepresented in almost every negative health and social indicator in this country, whether it's homelessness or substance use or children-in-care rates, incarceration, you name it. What comes with that sometimes is stigma and discrimination, where people think we are the architects of our own problems, that if only we'd get a job and pay taxes, then we'd be okay.

There are two papers in my references that talk about racism within the health care system. One was done by the Wellesley Institute and another by The College of Family Physicians of Canada. Perhaps you don't think racism exists. When those reports came out, if you look at the comments section on those posts, you see the racism was blatant. Sadly, this stuff does exist. We hear stories and stories, whether it's Frank Paul, who died from hypothermia in 1998, in Vancouver; Adam Capay, the young first nations' person who's been in solitary confinement for four years; Curtis Brick, who was taunted by first responders in Vancouver before he died of extreme heat; Barbara Kentner, the young woman in the Thunder Bay area who died after being hit by a trailer hitch.

When Barbara Kentner was hit by a trailer hitch, for us as indigenous people, we see that as racism. Somebody did that because she was an indigenous woman, but we know in law it's harder to prove that, so the man was charged with something else. The woman has since died.

Perceived racism has eroded our confidence in the system over hundreds of years. An example that these things still live with us is that in the Atlantic, people still commonly refer to social assistance cheques as rations, which is what Innu nations used to give out. They talked of it as their ration cheque. These things stay with us as part of our psyche.

In closing, I'd like to say, we believe more needs to be done around reconciliation, about ensuring that cultural competency is delivered in various areas. We also speak against Islamophobia, because if we were to say that one group is okay to discriminate against, then it takes away what we've been standing for so many years. Our teachings talk about the four colours of mankind in the medicine wheel: the red race, yellow race, the white race, the black race. Christians have the Ten Commandments. We operate under one principle, respect, respect for all life.

I think that what the Canadian government needs to do in terms of showing its leadership is to bridge those divides and work with the community to make sure that we welcome people coming in and educate people on the current realities.

We're now going into the question rounds. The first are seven minutes long. That seven minutes includes the time for questions as well as for answers. The first round goes to the Liberals and Mr. Vandal will be asking the first question.

Senator Sinclair, Mr. Barlow, thank you for being here. I appreciate your comment about this being a wide subject. We only have seven minutes for questions and answers. I probably won't get to ask another one so I'm going to stay very high level. You've identified the difference between racism and systemic racism very well, I believe. As you know better than most, systemic racism can cause somebody not to get a job, not to get the medical service they need, to get arrested, or worse.

Senator Sinclair, over the last 10 years, relative to systemic racism, are we heading in the right direction? Are things getting better?

I'll say, yes, we are heading in the right direction and things are getting worse. Things are getting worse mainly because the population of indigenous people and the population of visible minority people in this country is increasing, and therefore, the impact is upon a larger population of people. The negative impact, or the differential impact, is on a larger group of people. So you're beginning to see more awareness of the fact that we're having a negative impact. For example, when we did the AGI report on indigenous people, the incarceration rates were much lower than they are now ,even though since then we've had recognition that things need to be done, an effort on the part of courts to do more, amendments to the Criminal Code on sentencing in 1996 that called upon courts to take into account the unique circumstances of indigenous offenders. So efforts are being made, but they're just not keeping pace with the magnitude of the problem.

As both of us are from Manitoba, we both know that there are too many kids in the child welfare system, indigenous children. I believe there are upwards of 12,000 children in our system. It's never been as high as what it is. Can you comment on that.

A couple of reasons why I think that's happened is that we've had an increase in the number of child welfare agencies in Manitoba in particular and I think across the prairie provinces, which have the largest number of indigenous children population-wise and percentage-wise in the country. Even in those parts of the country where the population percentage-wise speaking is lower, the number of indigenous children has gone up who are in care. The reason is the increase in the number of the child welfare agencies, and that child welfare agencies since the Phoenix Sinclair inquiry and the Hughes report are now more aware of their potential liability for making mistakes, and so they are being less forgiving of families when it comes from deciding to take children into care. The birth rates are increasing because for the population of indigenous people they are much higher than they are for the rest of the population, and the average age at which children are being born to young indigenous women is lower than it used to be. That's because the population of young indigenous women who are having babies is increasing.

Yes. Systemic racism occurs at a number of different points. First of all, there's the point at which the decisions are made to apprehend children. The factors that are utilized and followed in order to make a decision as to whether to take a child into care exclude those factors, do not include those factors that are unique to indigenous families. For example, Manitoba, at this point in time, apprehends on average one newborn infant per day out of hospital. A young mother goes to a hospital, gives birth to a child, and the child is apprehended at the rate of about 370 newborn children per year, never mind the other children who are apprehended at later ages.

When you look at the factors that lead to that, it's because most mothers from northern communities have to go to two or three urban centres—Thompson, Brandon, or Winnipeg—in order to have children. They leave their home communities. If they have any kind of social or physical problem, they don't have the support system in place in that community to help them, so they have to involve a child welfare agency, and the first decision a child welfare agency makes is to apprehend the child. They'll take the child into care, and then they will offer support to the mother to get treatment or to get help. In the meantime, the child is in care. By the time the mother goes through treatment or gets the help that she needs, they'll often deny returning the child, or they will refuse to return the child to the mother, because they say that the child has now bonded with the family that they've placed the child with, and therefore, they're not going to interfere with the bond that the child has formed. Or they may say to the mother that she hasn't completed the program well enough, so she has to go to another program.

Systemic discrimination occurs because the factors and the standards to which indigenous people are held are almost impossible for them to meet because they do not have the same social benefits, social privileges, social options, and opportunities that non-indigenous families have. They have more negative factors that weigh upon their being caught up in the system to begin with.

As a result, the rules the system follows work against indigenous mothers.

We are working in this committee to develop a whole-of-government approach to reducing or eliminating systemic racism and religious discrimination. In less than a minute, can you give us some advice as to where we should be going?

When it comes to indigenous people—I'll talk about that because I have more experience and awareness there. It really does involve enhancing indigenous communities to do their own activities, to take over control of these systems, because they can do it just as good, and better in fact, than the non-indigenous agencies are doing when it comes to child welfare. It's the same with sentencing indigenous offenders. Involving their communities—particularly at younger ages, with indigenous youth—in the disposition of cases will prevent those children from moving further down the road into a life of crime. Empowering indigenous communities is the key. Self-government is the key.

Thank you to both our witnesses today. I'm going to direct my questions initially to you, Senator Sinclair, because of the fact that you touched on a very interesting definition of systemic racism.

I have a quote here from Stokely Carmichael and Charles Hamilton from their 1967 book, Black Power: The Politics of Liberation, which introduces the concept of institutional racism. I'm wondering whether you think this captures what you're trying to get at. They say:

When white terrorists bomb a black church and kill five black children, that is an act of individual racism, widely deplored by most segments of the society. But when in that same city—Birmingham, Alabama—five hundred black babies die each year because of the lack of proper food, shelter and medical facilities, and thousands more are destroyed and maimed physically, emotionally and intellectually because of conditions of poverty and discrimination in the black community, that is a function of institutional racism.

Those are examples of the issues that I'm talking about. There's no question of that. It's when you have a system, an approach to justice, an approach to the application of law, that treats people of one group differently from people of another group.

You have, for example, the situation of the fellow in Edmonton who has just now been charged with terrorism for running people over with his vehicle and attacking a police officer, and you have that fellow in Charlottesville who ran his car deliberately into a crowd of protesters, who is not charged with an act of terrorism. These two men have done the very same thing in order to intimidate a group of people and prevent them from exercising their rights ostensibly, and yet the white guy—if I can use that expression—in Charlottesville in the United States is not charged with terrorism and the guy in Edmonton is.

That's an example of the utilization of discretion, utilization of the power to make those decisions that stems from one's understanding and perspective of society and the rules of behaviour that are expected of you, as a police officer perhaps.

One of our witnesses last week was dealing with the issue of the number or the percentage of black Canadians—I think he was referring to males here—versus white Canadians who are charged with and found guilty of assorted offences. He noted that in the kinds of offences where there is the maximum amount of judicial discretion, that's where we see the greatest disequilibrium. I'm not sure that's the right word—the greatest divergence might be a better way to say it. I want to be careful I'm not putting words in his mouth, but I believe what he was saying was that this indicates an underlying bias of some sort in the minds of judges that carries over into the sentencing.

He was talking about a different group, of course, as were Stokely Carmichael and his co-author, but does that capture some of what is going on vis-à-vis aboriginal Canadians with regard to the justice system?

The way we have been educated in this country—and it's true also in the United States—is to believe that if we are Euro-Canadian people, then people who are not of our background are inferior to us, because that's the belief system that came over with colonialism and those who brought the European systems of believing things. It was behind the use of common law. It was behind the use of various other legal mechanisms to establish and justify crown sovereignty in this jurisdiction. They said they were a superior people entitled to do this.

When we encounter people who are not of that background, we assume they need to be shown, that we need to treat them in a way that will bring them into that mould. When I was a young lawyer practising law, I had many judges who would say to my indigenous client, “You need to learn that this law is meant for you; therefore, I'm going to sentence you to this”, whereas a non-indigenous person who had committed the same offence might not get the same sentence. They would attempt to use the law to teach a lesson.

That kind of belief, that European colonizers who came to this country were superior to the indigenous people who were here, is an inherent part of the colonial experience. It has taught indigenous people that they are inferior; it has taught non-indigenous people that they are superior, and it has contributed mostly to the very negative relationship that exists between indigenous and non-indigenous people.

Judges, who are predominantly of European ancestry, believe that when they exercise discretion, they have to do it in such a way that it will reinforce what the system is all about.

I used to chair the international human rights subcommittee, and one of the things we looked at from time to time—although this was not about international human rights but Canadian human rights—was the universal periodic review of Canada's performance as a country. One was completed in 2009, a second in 2013, and a third one will be coming out shortly. They happen every four years.

I am relying on the 2013 one, but I suspect we might find some overlap here. When I go through the recommendations and issues highlighted by other countries, I see the following, and you'll see the pattern and it won't surprise you.

Finland cited discrimination faced by aboriginal women and girls. Ireland mentioned the problem of human rights issues faced by aboriginal peoples. Japan noted violence against aboriginal women. I have some more but I'll run out of time here. This is a pretty standard pattern. It appears to me that when the international community, including countries with very good human rights records, looks at Canada's performance, they feel the area in which we are suffering from the greatest degree of what could be called systemic racism—built-in, baked-in racism—is in our treatment of aboriginal peoples, as opposed to any of the other possible categories.